Introduction

In India, rape is a criminal offence, but there is no legal protection from rape within marriage
Marital rape is a form of domestic violence in which one spouse is sexually abused by the other.
Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of
force, or physical violence, or when she is unable to give consent. Marital rape is one of the under-
reported violent crimes because it is socially tolerated. Some abused women are afraid to report
the violence because they rely financially on their husbands for their upkeep and children's
maintenance. Others feel unable to speak out due to fear and humiliation. The aim the Criminal
Law (Amendment) Bill 2012 is to demonstrate that forced sex within relationships is rape. This
needs to be acknowledged and addressed by Members of Parliament. The importance of consent
for every individual decision cannot be over emphasized. woman can protect her right to life and
liberty, but not her body, within her marriage, which is just ironical. Women so far have had
recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against
"perverse sexual conduct by the husband". But, where is the standard of measure or interpretation
for the courts, of 'perversion' or 'unnatural', the definitions within intimate spousal relations? Is
excessive demand for sex ji perverse? Isn't consent a sine qua non? Is marriage a license to rape?
There is no answer, because the judiciary and the legislature have been silent.

The 172nd Law Commission report had made the following recommendations for
substantial change in the law with regard to rape.

1. Rape should be replaced with the term sexual assault.

2. In the light of Sakshi v. Union of India and Others sexual assault on any part of the body should
be construed as rape.

3. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse
by a husband with his wife should be treated equally as an offence just as any physical violence
by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was
added. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual
act and it is denied, the court shall presume it to be so.

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has
provided .civil remedies to what the provision of cruelty already has given criminal remedies,
while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the
Domestic Violence Act, amongst other things in the definition of domestic violence, has Included
any act causing harm, injury, anything endangering health, life, etc., mental, physical, or sexual.
However law ignores such a huge violation of at fundamental right of freedom of any married
woman, the from any abuse. Right to her body, to protect her from any abuse.

Marital Rape Is a Crime

In marital rape husband might use force or threats, for example, or may engage in sex with his
wife when she can't consent due to physical or mental reasons. Marital rape occurs across all ages
and all social, racial and ethnic groups. In USA Marital rape has been made the: as a crime in
every state since 1993. However, not all states treat the abuser the same. In her; states and the
District of Columbia, the husband can be prosecuted like any offender) who has raped a stranger.
In the remaining states, the husband will not be prosecuted if the) wife was unable to consent to
sex because she was asleep, unconscious, mentally impaired, or physically impaired.' Women
who are raped by their partners frequently experience a wide range of violence. Marital rape often
involves severe physical violence, threats of violence, and the use of weapons by men against
their partners. Importantly, some researchers have found that compared to batterers, men who
batter and rape are particularly dangerous men and are more likely to severely injure their wives
and potentially even escalate the violence to murder.

On one hand, viewing rape in marriage as a form of domestic violence in that the majority of
women who are raped by their partners are also battered. Some have argued that marital rape
should not be subsumed under the heading of domestic violence because doing so in the past has
led to rape in marriage being overlooked as a distinctive problem. It is necessary to recognize
marital rape as a distinctive form of violence because for many ns - women who are battered and
raped, the sexual violence is particularly devastating and that trauma must be addressed
specifically by service providers.

Effect of Marital Rape

The Effects of Marital Rape Marital rape caused serious health problems including HIV and other
sexually-transmitted infections and, vaginal bleeding or infection, genital irritation, pain during
sex, chronic, can also pain, and urinary tract infections. The physical violence associated with
marital rape lead to complications during pregnancy, resulting in health problems for both women
and their children. Mental health impacts associated with marital rape and other abuse by partners
include depression, anxiety, emotional distress and suicidal thoughts Marital rape and violence
also undermine children's health and well-being, both through the Psychological impacts of
witnessing violence and because it can undermine the ability of mothers to care for themselves
and their children. The Impacts of mar on women who have been raped by their partners
experience pain, humiliation red or distress. Criminal Law (Amendment) Bill, 2012 looks at client
records to higher experiences of women who have gone through this form of violence. Marital
rape create public health problems including poor maternal and child health, repeat-infections

Sexually-Transmitted Infections (STIs) and long-term exposure to the risk of HIV. Some of the
short-term effects of marital rape include anxiety, shock, intense to' use depression, suicidal
ideation, disordered sleeping, and post-traumatic stress disorder, Long-term effects often include
disordered eating, sleep problems, depression, distress, problems establishing trusting
relationships, distorted body image, increased negative feelings about themselves.

Marital Rape and Legal Provisions in India

India is a state party to United Nations Convention on the Elimination of All Forms, of
Discrimination against Women (CEDAW) and the Protocol on the Rights of Women ever Africa,
however, Indian law fails to prohibit rape within marriage. The only legal protect, for Indian
women in cases of domestic violence is the general law on assault. This la' , inadequate for
protecting women from marital rape because it requires witnesses evidence of a physical struggle.
and e' The inadequacy of specific national law for protecting women who are raped by the
husbands recommends Parliamentarians to amend the law to prohibits marital rape family they
can raise awareness that sex within relationships should be consensual, not forced, draft bill it
then presented to Parliament. Sexual assault laws. The government rejected this proposed change,
leaving it out, sent Verma Committee, a three-member panel appointed to suggest amendments to
India, Whether to criminalize marital rape or not was widely debated in India ahead of last week
vote in Parliament. Criminalizing marital rape was also among the suggestions of the is n( A panel
of lawmakers who opposed the move argued that "it has the potential of destroying the institution
of marriage," If marital rape is brought under the law, the entire family in system will be under
great stress," Some activists acknowledge it is hard to prove rape among ma cried women, but
argue this make is not a good enough reason to deny women a legal framework to fight sexual
abuse. 'A hip murder is also hard to prove," says Rind Grover, a human rights lawyer. "But that
doesn't deny victims from seeking legal recourse," she says. (Therefore there is no justification or
applicability of the notion of marital exemption in the current times. It is true that mere
criminalization of marital rape in India will not end the problem, but it sure is an important step
towards changing women's experience of sexual violence in a marriage. It is high time that the
concept of "rape is rape, irrespective of tile, relationship between the victim and the perpetrator" is
recognized by the law and strictly to force. Today there are many countries that have either
enacted marital rape laws. The Impacts of marital rape on women who have been raped by their
partners experience pain, humiliation and distress. Criminal Law (Amendment) Bill, 2012 looks at
client records to highlight the experiences of women who have gone through this form of
violence. Marital rape causes public health problems including poor maternal and child health,
repeat-infections with Sexually-Transmitted Infections (STIs) and long-term exposure to the risk
of HIV infection. Some of the short-term effects of marital rape include anxiety, shock, intense
fear, depression, suicidal ideation, disordered sleeping, and post-traumatic stress disorder. Long-
term effects often include disordered eating, sleep problems, depression, sexual distress, problems
establishing trusting relationships, distorted body image, and increased negative feelings about
themselves 1.4 Marital Rape and Legal Provisions in India is a state party to United Nations
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and
the Protocol on the Rights of Women in Africa, however, Indian law fails to prohibit rape within
marriage. The only legal protection for Indian women in cases of domestic violence is the general
law on assault. This law is inadequate for protecting women from marital rape because it requires
witnesses or evidence of a physical struggle. The inadequacy of specific national law for
protecting women who are raped by their husbands recommends Parliamentarians to amend the
law to prohibits marital rape and they can raise awareness that sex within relationships should be
consensual, not forced.' Whether to criminalize marital rape or not was widely debated in India
ahead of last week's vote in Parliament. Criminalizing marital rape was also among the
suggestions of the Verma Committee, a three-member panel appointed to suggest amendments to
India's sexual assault laws. The government rejected this proposed change, leaving it out of the
draft bill it then presented to Parliament. A panel of lawmakers who opposed the move argued
that It has the potential of destroying the institution of marriage,' If marital rape is brought under
the law, the entire family system will be under great stress,' Some activists acknowledge it is hard
to prove rape among married women, but argue this is not a good enough reason to deny women a
legal framework to fight sexual abuse. murder is also hard to prove," says Vrinda Grover, a
human rights lawyer. "But that doesn't deny victims from seeking legal recourse,' she says!
Therefore there is no justification or applicability of the notion of marital exemption in the current
times. It is true that mere criminalization of marital rape in India will not end the problem, but it
sure is an important step towards changing women's experience of sexual violence in a marriage.
It is high time that the concept of "rape is rape, irrespective of the relationship between the victim
and the perpetrator is recognized by the law and put strictly to force. Today there are many
countries that have either enacted marital rape laws, repealed marital rape exceptions or have
laws that do not distinguish between marital rape and ordinary rape. These countries
include: Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany,
Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines,
Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States,
and recently, Indonesia. Turkey criminalized marital rape in 2005, Mauritius and Thailand
did so in 2007. The criminalization of marital rape in these countries both in Asia and
around the world indicates that marital rape is now recognized as a violation of human
rights. In India the tenets of the marital rape exemption were based on the notion of
'irrevocable implied consent'. As per this notion, once a woman is married to a man, there is
believed to be implied consent to sexual intercourse, which is irrevocable in nature. The
other traditional justifications for the marital exemption were the common law doctrines
that a woman was the property of her husband and that the legal existence of the woman
was 'incorporated and consolidated into that of a husband'. Though we have advanced in
every possible field, marital rape is not considered as an offence in India. Despite
amendments, law commissions and new legislations, one of the most humiliating and
debilitating acts is not an offence in India. A look at the options a woman has to protect
herself in a marriage, tells us that the legislations have been either non-existent or obscure
and everything has just depended on the interpretation by Courts. It is difficult to obtain
accurate data regarding rape and violence against women within the family, in part because
women are reluctant to report incidents, as women raped by their husbands may hesitate to
report because of family loyalty, fear of their abuser's retribution, inability to leave the
relationship, safeguarding the future of their children, or the fact that there are no stringent
laws in force protecting the victims of marital rape. The provision of rape in the Indian
Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause-
"Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is
not rape." Once, the age crosses 15, there is no legal protection accorded to the wife, in
direct contravention of human rights regulations. How can the same law provide for the
legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up
to the age of 15? Beyond the age of 15, there is no remedy to the woman. The Indian Penal
Code was amended in 1983 to make way for the criminalization of spousal rape during the
period of judicial separation. This is only a piecemeal legislation and much more needs to
be done by the Parliament in regard to marital rape. The Indian Penal Code has dealt with
this form of rape in a very piecemeal manner.

Marital Rape and Right to Life Constitution of India and Marital Exemption to Rape
Article 14 guarantees a fundamental right of equality before the law and equal protection
of every citizen of India. Withdrawing the protection of Section 375 of the IPC from the
victim of the case of rape solely on the basis of their marital status is irrelevant for the
purposes of legislation and thus violates the test of classification under Article 14.

Right to Life and Personal Liberty

Article 21 of the Indian Constitution enshrines in it the right to life and personal liberty.
Maneka Gandhi v. Union of India,' it has become the source of all forms of right aimed at
protection of human Life and liberty. The meaning of the term life , has thus expanded life
means 'something more than mere animal existence', which was further affirmed loathe,
Supreme Court of India in the case of Bandhua Mukti Morcha V. Union of India. In light of
this expanding jurisprudence of Article 21, marital exemption to rape violates the right la
privacy, right to bodily self-determination and to good health, all of which have been
recognized as an integral part of the right to life and personal liberty. Any law Which
legitimizes the right of a husband to compel the wife into having sexual intercourse against
her will and without her consent goes the against the very essence of right to life under
Article 21 and is hence unconstitutional.

Right to Sexual Privacy

The right of privacy under Article 21 includes a right to be left alone. Any form of forceful
sexual intercourse violates the right of privacy. It is submitted that the doctrine of marital
exemption to rape violates a married woman's right to privacy by forcing her to enter into
sexual relationship against her wishes.'

Right to Bodily Self-determination

Though the Constitution does not expressly recognize the right of bodily self-determination;
such a right exists in the larger framework of the right to life and personal liberty under
Article 21. The right of self-determination is based on belief that the individual is the
ultimate decision maker in matters closely associated with her/his body or well-being.
Consent to sex is one of the most intimate and personal choice that a woman reserves from
herself. It is a form of self expression and self-determination and a law that takes away the
right of expressing and revoking such consent definitely deprives a person the constitutional
right of bodily self-determination."

Right to Good Health

Another argument against the doctrine of marital exemption to rape is that it violates the
right to good health of the victim of such crime. The right to good health has been
recognized as a part of the right of life under Article 21. The marital exemption violates the
right to good health of a victim as it inevitably causes serious psychological a' well as
physical harm in the process. It destroys the psychology of a woman and pushes her into a
deep emotional crisis.

Judicial Stand Regarding Marital Rape

Tracing the history of judicial decisions on infliction of serious injury by the husband on the
wife the court in Queen Empress vs. Haree Mythee, observed that in case of marry women,
the law of rape does not apply between husband and wife after the age of 15; even if the
wife is over the age of 15, the husband has no right to disregard her physical safety, for
instance, if the circumstances be such that intercourse is likely to cause death. In the present
case, the husband was convicted under section 338, Indian Penal Code, for rupturing the
vagina of his eleven-year old wife, causing hemorrhage leading to her death. In Emperor vs.
Shahu Mehrab the husband was convicted under section 304A of Indian Penal Code for
causing death of his child-wife by rash or negligent act of sexual intercourse with her. In
Saretha vs. T. Venkata Subbaih, the Andhra Pradesh High Court held that "there can be no
doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of
the body and mind subjected to the decree and offends the integrity of such a person and
invades the marital privacy and domestic intimacies of a person". The Supreme Court, in
State of Maharashtra vs. Madhukar Narayan Mandikar, has referred to the right of privacy
over one's body. In this case it was decided that a prostitute had the right to refuse sexual
intercourse. What is sad to know is that all stranger rapes have been criminalized and all
females, other than wives, have been given the right of privacy over their bodies thereby
envisaging the right to withhold consent and refuse sexual intercourse. In Sree Kumar vs.
Pearly Karun,18the Kerala High Court observed that because the wife was not living
separately from her husband under a decree of separation or under any custom or usage,
even if she is subject to sexual intercourse by her husband against her will and without her
consent, offence under Section 376A, IPC will not be attracted. In this case, there was an
ongoing dispute on divorce between the parties. Thereafter, a settlement was reached
between the husband and wife and parties agreed to continue to reside together. The wife
stayed with the husband for two days during which she alleged that she was subject to
sexual intercourse by her husband against her will and consent. Hence the husband was held
not guilty of raping his wife though he was de facto guilty of having done so. The judiciary
seems to have completely relegated to its convenience the idea that rape within marriage is
not possible or that the stigma of rape of a woman can be salvaged by getting her married to
the rapist. The trouble is that it has been accepted that a marital relationship is practically
sacrosanct. Rather than, making the wife worships the husband's every whim, especially
sexual, it is supposed to thriven, mutual respect and trust. It is much more traumatic being a
victim of rape by someone known, a family member, and worse to have to cohabit with
him. How can the law ignore such a huge violation of a fundamental right of freedom of any
married woman, the right to her body, to protect her from any abuse?

Supreme Court declares sex with wife below 18 illegal: Legislature must
now step up to criminalise marital rape

The Supreme Court has yet again in an historic judgement in the case of Independent
Thought vs Union of India, has now criminalised sex between a man and his minor wife. This
has resulted in the partial criminalisation of marital rape. The court was hearing a petition
filed by an NGO Independent Thought, argued by advocates Gaurav Agarwal and Abhikalp
Pratap Singh.

In effect, this now means that the offence of rape will be made out even if the perpetrator is
the husband of the victim, but only if the victim is less than 18 years of age. It is pertinent to
highlight that a complete strike down of Exception 2 to Section 375 of Indian Penal Code
(IPC) is necessary to make a husband criminally liable for raping his wife, for all age groups.
This did not happen; the court only read down the provision to increase the age of wife from
15 to 18 years. This exception is literally known as the marital exception to rape.

The court on multiple occasions in the judgement, has stressed the fact that it is refraining
from making any observations on marital rape in general. The instant case was very specific
in dealing with the issue of marital rape of a minor, primarily because the petition didnt seek
that remedy. Even so, the court quoted a line from the decision of the European Commission
of Human Rights, a rapist remains a rapist regardless of his relationship with the victim,
suggesting that the relationship can be that of a husband and a wife.

File image of Supreme Court. Reuters

However, this verdict has certainly laid down the ground for recognition of marital rape as an
offence under Indian Law, in its entirety.

The decriminalisation of marital rape in various legal regimes is due to a very outdated rule
known as Hales principle. This principle lays down that the husband cannot be guilty of a
rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her husband which she cannot
retract. This was propounded in 1736 by Sir Matthew Hale. There was even a right to whip
the wife, which was exercised by the husband at that time. Obviously, the substance of this
principle holds no water today. Even the English language in which this principle was
propounded has changed since then, but Indian law still sticks to it.

There was also a preposterous doctrine of coverture under English Common Law, at that
time, which regarded women as chattel or property of the husband. It laid down, that the
rights and obligations of a woman, subsequent to marriage, are subsumed by that of her
husband.

It is strange that our criminal law, which has been framed on the principles of English
Common Law, still gives force to these rudimentary doctrines in some form or the other,
when they have been abolished in England itself. The House of Lords of England in the
famous case of R v R in 1991, has already recognised the offence of marital rape there, as
have most other modern jurisdictions too. It is only through the application of such doctrines,
that the decriminalisation of marital rape can be sustained in any legal system.

However, radical changes in law only seldom happen. The law typically evolves very
gradually. It is these small steps, in the form of the current judgement, that the law relating to
the complete criminalisation of marital rape will develop. The apex court has given a very
positive indication that it is not averse to this as well. It refrained from going into this
question merely because it wasnt raised by the petitioner, and no other reason.
It is now imperative that the union government takes up the issue proactively and frames
adequate laws regarding the criminalisation of marital rape. The courts alone should not be
expected to bring about progressive changes in the laws every time. This is even more
important for the issue at hand, that is marital rape.

Having said that, the criminalisation of marital rape needs to be accompanied by relevant
changes in the procedural laws as well. It needs to be stressed that marital rape cant be tried
with the same rules of evidence and procedure as is applicable to the usual cases of rape. For
instance, the testimony of the rape victim in most cases is sufficient to convict the accused
and needs no corroboration. This, when applied to a case of marital rape will necessarily
widen the scope of misuse of the law to a great extent.

Even in cases of marital discord, marital rape can be alleged, since there is no corroboration
needed, the word of the woman within the four walls of a marital home will be sufficient to
convict the husband for marital rape. It is, therefore, very necessary that a corroboration of
the testimony of the marital rape victim be required. It can only be done through pertinent
amendments to the procedural and evidence law by the legislature.

It is not for a moment being suggested that the courts shouldnt criminalise marital rape at the
first available opportunity. It is, indeed, sooner the better, that the law accords criminal
liability to a married man for raping his wife. The transition will certainly be smoother and
durable if it is done by the legislature.

Conclusion
Rape is a most heinous crime committed on a woman. It is immaterial whether women are
married or unmarried. Rape is rape irrespective of the fact that who commits it either
husband or stranger. Marital rape also violates the human right of a married woman i.e.
safety and integrity. If a woman marries, it should not mean that she has lost her dignity
against her husband. Women who are raped by their husbands are likely to experience
multiple assaults and often suffer severe long-term physical and emotional consequences.
One of the most pressing areas of marital rape is how children are affected by marital rape.
The continuing exemption of marital rape from the organizations has succeeded to achieve
public awareness. and to pas property But rnarital, domestic violence, but marital rape has
not been fully criminalized. Neither be criminalized nor punished, until legislators and the
society women's individual rights within the marriage. Justice Verma Committee
recommended criminalizing marital rape as rape but recommendation was not considered.
So, Section 375 of Indian Penal Code, amended in light of recommendations of Justice
Verma. Moreover, on one hand talks of empowering women and at the same time we are
not protecting the dignity right to life of married women. Succinctly, it can be said the
dissimilarity between marital rape and non-mar it, should be removed because marriage
does not provide license for committing raps rape, the dignity of women either married or
unmarried is alike. Endnotes Section 375, the provision of rape in the Indian Penal Code
(IPC), has echoing sentiments, mentioned as its exception clause- "Sexual intercourse by
man with his wife not being under 15 years of age, is not rape." As per the Indian Penal
Code, the instances wherein the husband can be criminally prosecuted when the wife is
between 12 15 years of age, offence punishable with imprisonment up to 2 years or final
or both. When the wife is below 12 years of age, offence punishable with imprisonment of
either description for a term which shall not be less than 7 years but which may extend to
life or for a term punishable with imprisonment u to 2 years and fine extending up to 10
years and shall also be liable to fine Rape of a judicially separated wife, although did not
consider marital rape as a crime punishable. In 2005, the Protection of Women from Do.
Rape of wife of above 15 year , did domestic Violence Act, 2005 was passes consider it as a
form of domestic violence.